MEMORIAL 


OF  'THK 


DELAWARE  AWi);;:H;tiDil|N 

TO  THE 


MARCH,  1852. 


NEW  YORK : 

JOHN  M.  ELLIOTT,  PRINTER, 
133  Water  Street. 


TO  THE  HONORABLE  THE  %E^tSLATURE  OF 
THE  STATE  oVnEW  ^6^4  ;,  ;  , 

The  Memorial  of  the  President,  Manager^,  ^i^id  Company  of 
the  Delaware  and  Hudson  Caii?4/0Q™P^iiy>  lespectfully 
represents,  "  "        V  ^ 

That  at  an  early  day  in  the  session  of  your  honGrabl&body,  a  re- 
solution was  passed  in  the  Assembly,  at  the  instance  of  one  of 
its  members,  for  the  appointment  of  a  committee  to  inquire  whe- 
ther this  Company  had  violated  its  charter  by  the  enlargement 
of  its  canal.  The  resolution  was  referred  to  the  Commitcee  on 
Canals. 

The  Company,  through  its  President,  by  letter  addressed 
to  the  chairman  of  that  committee,  promptly  reported  itself 
ready  to  enter  upon  the  inquiry,  and  meet  the  charge  imputed 
in  the  resolution,  if,  in  the  opinion  of  the  committee,  it  was 
one  calling  for,  and  to  be  determined  by,  legislative  inquiry. 
The  chairman  replied,  that  should  charges  be  presented  to 
the  committee,  which,  in  its  judgment,  required  legislative  in- 
quiry, the  Company  would  be  informed  of  it,  and  an  oppor- 
tunity afforded  to  answer  them.  At  a  subsequent  time  the 
committee  reported  the  resolution  back  to  the  House,  with  a 
request  to  be  discharged  from  the  further  consideration  of  the 
same.  Tliis  was  ordered,  but  the  resolution  was  then  referred 
to  a  select  committee. 

Again,  your  memorialists,  by  their  President,  tendered 
themselves  ready  to  meet  and  to  answer  the  charge  imputed  in 
the  resolution  ;  and  to  that  end  he  attended  two  meetings  of 
the  committee.  At  these  meetings,  sundry  exj)arte  affidavits 
were  presented  by  the  mover  of  the  resolution.  On  behalf  of 
your  memorialists,  objection  was  made  to  the  reception  of 
these  affidavits,  as  being  entirely  irrelevant  to  the  inquiry  be- 
fore the  committee,  which  was  purely  legal  in  its  character  ; 
and  because  also  if  the  subject  matter  of  the  affidavits  was  to 
be  gone  into,  it  was  the  undoubted  right  of  your  memorialists, 
according  to  all  settled  rules  of  evidence,  that  the  parties  mak- 
ing the  affidavits  should  be  adduced  and  subjected  to  a  cross- 
examination,  as  a  test  of  their  truth,  and  an  opportunity  also 
given  to  your  memorialists  to  present  rebutting  testimony, 
which  they  could,  and  would  have  done,  through  witnesses 


4 


they  had  in  attendance  in  the  committee  room,  and  by  whom 
every  material  averment  made  in  these  ex^arte  affidavits 
would  have  beep  .disproved. 

The  committeeVhevVever.,  deemed  it  expedient  to  permit 
the  e^^'w^y?  davits  offei  t^d  by  the  complainant  to  be  read, 
with  th^3  reservaiion,  a's  your  memoriahsts  understood,  that  if 
they  did  iiot  ccifiiain  matter  pertinent  to  the  inquiry  with  which 
the  c6mn)ittee  was'/; harmed,  the  rights  and  interest  of  the 
Company  shoitld  riat"  tliereby  be  prejudiced  ;  and  if  they  did 
contain  such  matter,  that  an  opportunity  should  be  afforded  to 
the  Company,  fully  to  answer,  explain  or  rebut  by  testimony 
this  ex])arte  shewing.  After  hearing  and  duly  considering 
the  exparte  affidavits  offered,  and  all  that  the  complainant  had 
further  to  submit  by  himself  or  his  counsel,  the  committee  de- 
cided that  it  was  unnecessary  for  your  memorialists  to  pre- 
sent any  testimony  by  way  of  answer  to  the  exj)arte  shewing 
of  the  complainant,  and  the  witnesses  then  in  attendance,  on 
behalf  of  the  Company,  were  dismissed  without  examination. 

From  this  decision  of  the  committee,  your  memorialists 
heard  of  no  dissent  by  any  member  of  it ;  and  they  respect- 
fully submit,  that  they  could  not  understand  it  in  any  other 
way,  than  as  an  unconditional  and  unqualified  ruling  out  of  the 
case,  of  all  the  exjparte  matter  presented  by  the  complainant, 
as  impertinent  to  the  inquiry  before  the  committee,  and  which 
could  not  properly  be  used  to  the  prejudice  of  the  Company, 
in  the  report  which  was  to  be  presented  to  the  House  in  an- 
swer to  that  inquiry.  In  accordance  with  these  views,  your 
memorialists  understood  the  report  of  the  committee  to  have 
been  made. 

But  they  have  seen,  with  much  surprise,  a  minority  report 
made  by  one  member  of  the  Committee,  which  they  think 
does  gross  injustice  to  your  memoriahsts,  and  subjects  them  to 
great  misconstruction  by  your  honorable  body  and  the  pubhc 
in  general.  That  report  is  not  only  based  mainly  on  these 
exparte  affidavits,  ( the  truth  of  which  your  memorialists  had 
no  opportunity  to  test  by  a  cross-examination,  nor  to  refute  by 
the  testimony  of  witnesses  in  actual  attendance, )  but  the  ex- 
parte affidavits  themselves  are  actually  incorporated  in,  made 
part  of,  and  printed  with  the  minority  report,  whereby  your 
memorialists  are  condemned  unheard.  In  addition  to  this, 
an  extract  from  the  opinion  of  a  professional  gentleman  is 
embodied  in  the  minority  report  in  affirmance  of  it,  without 
any  reference  or  allusion  to  the  fact  that  your  memoriahsts. 


5 


were  ready  to  submit  to  the  committeej  the  opinions  of  two> 
professional  men,  of  at  least  equal  eminence  and  authority 
with  the  one  whose  opinion  is  thus  quoted,  and  l^fpsf-  di- 
rect  opposition  to  it.  One  of  these  opinions  was  handed  to  the 
committee,  and  the  other  would  have  been,  had  the  Company 
been  called  upon  for  a  defence.  But  what  is  yet  more  stri- 
king is,  that  in  the  minority  report,  no  reference  or  al- 
lusion is  made  to  the  still  more  significant  fact,  which  was 
stated  to  the  committee,  that  there  had  been  at  least  two,  if 
not  three,  judicial  decisions  in  as  many  separate  suits,  ( in  one 
of  which,  the  mover  of  the  resolution  of  inquiry  was  plain- 
tiff,)  all  affirming  the  right  of  your  memorialists  to  enlarge 
their  canal,  under  the  provisions  of  the  charter. 

Your  memoriahsts  are  therefore  utterly  unable  to  perceive 
how  the  structure  or  conclusion  of  this  minority  report  can  be 
recconciled  with  fair  and  just  deahng  toward  them,  (the  honor- 
able member  making  it,  never  having  heard  their  defence, ) 
unless  indeed  it  be  deemed  right  to  arraign  a  party,  try  him 
by  exparte  testimony,  shut  out  his  defence,  and  then  con- 
demn him.  Your  memorialists  do  therefore  respectfully  re- 
monstrate against  the  minority  report  as  erroneous  in  its  matter 
and  conclusion,  as  unjust  and  unfair  toward  your  memorialists, 
and  as  placing  them  in  a  false  position  before  your  honorable 
body  and  the  public. 

In  reference  to  the  exparte  affidavits  themselves,  your 
memorialists  beg  leave  to  remark,  that  one  of  them  is  made 
by  the  honorable  member  who  moved  the  resolution  of  inquiry, 
and  whose  assumed  "  private  griefs"  have  heretofore  been  the 
subject  of  judicial  examination.  In  that,  the  appropriate  tri- 
bunal to  pass  upon  them,  the  decision  was  against  him.  Yet 
even  now,  within  a  few  days  past,  while  avaihng  himself  of 
his  position  as  a  member  of  your  honorable  body,  to  arraign 
and  prejudice  your  memorialists  on  exjparte  shewing,  he  has 
notified  them  that  he  will  again  harass  and  annoy  them  by  vexa- 
tious suits,  unless  his  unreasonable  and  unfounded  demands 
are  complied  with  ;  notwithstanding  he  has  heretofore,  by 
written  agreement,  for  an  expressed  and  received  considera- 
tion, consented  to  the  enlargement  of  the  canal  through  his 
lands. 

Another  of  these  exjparte  affidavits  is  made  by  a  person,, 
who  has  now  a  suit  pending  against  the  Company  for  alledged. 
grievances,  but  who  not  being  willing  to  rely  on  the  justice  or; 
equity  of  his  case,  desires  to  gain  strength  and  increase  his. 


6 


©hance  of  success  by  exciting  the  public  mind,  and,  if  possi- 
ble, by  making  the  State  directly  or  indirectly  a  party  thereto. 
These  appeals  to  the  Legislature  are  also  less  expensive  than 
judicial  proceedings,  and  are  probably  stimulated  by  the  hop© 
that  your  memorialists  will  thereby  be  intimidated  into  a  com- 
pHance  with  demands  which  courts  of  justice  would  not  sus- 
tain. 

It  is  with  these  hopes  and  these  objects  in  view,  as  your 
rpemorialists'  believe,  that  this  complaint  has  been  made,  and 
these  exjm'te  afljdavits  have  been  arrayed  against  the  Com- 
pany. They  have  been  gotten  up  by  one  or  two  designing 
individuals  to  whom  the  others  have  turned  a  credulous  ear  ; 
and  the  same  parties,  as  your  memoriahsts  are  informed,  are 
now  circulating,  for  signature,  petitions  to  your  honorable 
body  against  your  memorialists,  containing  matter  similar  to 
that  found  in  the  affidavits,  and  in  furtherance  of  the  object  for 
w^hich  they  were  prepared. 

Your  memorialists  distinctly  and  unequivocally  deny  the 
truth  of  the  allegations  contained  both  in  the  affidavits  and  the 
petitions  refered  to.  Your  memorialists  have,  in  no  instance, 
occupied  the  land  of  any  person  without  his  consent  first  had 
on  specified  terms,  or  faihng  to  obtain  that,  as  has  been  the 
fact  in  but  two  or  at  most  three  cases,  your  memoriahsts  have, 
before  such  occupation,  given  ample  security,  in  the  manner 
prescribed  by  the  charter,,  for  the  payment  of  any  damages 
that  might  be  awarded  to  the  party  s^^vithholding  his  consent. 

Nor  have  your  memoriahsts  ever  exceeded  the  limit  pre- 
scribed by  law  in  relation  to  tolls  on  the  canal.  Whether  the 
rate  charged  has  been  reasonable  or  not,  your  honorable  body 
may  infer  from  th.e  fact,  that  in  no  one  year  has  the  aggregate 
amount  of  toll  received  from  the  entire  country  through 
which  the  canal  hasbeeu  constructed  in  this  State,  exceeded 
$35,000  ;  the  length  of  that  portion  of  the  canal  being  eigh- 
ty-four miles,  its  cost  over  $4,000,000,  and  the  expense  of  its  re- 
pairs, supervision  and  taxation  being  over  $100,000  per  annum. 

In  relation  to  the  new  piece  of  canal  constructed  at  High 
Falls,  Ulster  county,  your  memorialists  would  remark,  that 
its  entire  length  is  not  over  one  mile  and  a  half,  its  distance 
at  the  widest  place  from  the  old  line  is  but  1804  feet  ;  it  is 
constructed  in  its  entire  length  on  land  acquired  by  the  Com- 
pany by  the  voluntary  consent  or  fair  purchase  of  the  former 
owner  ;  or  (as  prescribed  in  the  charter,)  for  consideration 
pa,id  according  to  the  awa.rd  of  a  jury  of  appraisei:s.  The 


7 


consttutitiOn  of  this  new  piece  of  canal  beqame  necessary,  be- 
cause of  great  difficulty  in  the  location  ucd  a-b-solute  insecuri^ 
ty  of  the  locks,  and  also  of  sorae.part  of  the  c-.aitd  mi  ihe  old 
line.  The  old  line  of  canal  is'stiH  ;in'exi^tei?c6,  and  raay  be 
used  by  any  person  who  desires  to,  do  s6  ;  ^nd  this  new  piece 
of  work  is  really  a  "side  cut  qt  :iaterii\  canal,". conr<ected 
with  a  basin  at  one  end,  and  at  the  other  with  iho  old  line  of 
canal.  Its  construction  as  such,  is  expressly 'mithorized  by 
the  8th  section  of  the  charter  of  the  Company,  to  say  nothing 
of  the  great  difficulty  and  hazard  of  "  maintaining"  uninter- 
rupted navigation  on  the  old  line,  which  has  always  been 
•deemed  highly  insecure. 

Your  memorialists  might  thus  proceed  to  answer  and  re- 
fute in  detail,  each  and  every  allegation  contained  in  the  affida- 
vits and  petitions  arrayed  against  them  ;  for  they  are  ahke 
unfounded  and  untrue.  They  will  not,  however,  further  oc- 
cupy the  time  of  your  honorable  body  in  that  way.  But  they 
respectfully  submit  that  all  of  these  matters  are  purely  and  en- 
tirely private  and  not  public  in  their  nature  ;  that  the  cog- 
nizance of  them  belongs  appropriately  and  exclusively  to  the 
judiciary  ;  and  before  that  tribunal  your  memorialists  are 
ready,  willing,  and  able,  to  meet,  to  answer,  and  to  disprove, 
the  allegations  made  against  them,  if  the  issue  is  permitted  to 
stand  on  its  merits,  and  to  be  decided  by  regular,  customary, 
unbiassed  judicial  action.  This  the  agitators  well  know,  and 
hence  they  seek  to  forestall  public  opinion,  and  also  invoke 
the  overshadowing  influence  of  legislative  intervention  in  their 
behalf.  Against  such  a  course,  your  memorialists  respect- 
fully remonstrate,  as  contrary  to  the  theory,  spirit,  and  prac- 
tice of  our  government,  and  the  estabhshed  law  of  the  land. 

In  reference  to  the  legal  question  involved  in  the  resolution 
referred  to  the  committee,  your  memorialists  respectfully  so^ 
licit  the  attention  of  your  honorable  body  to  a  letter  addressed 
by  the  President  of  the  Company  to  the  chairman,  on  the 
10th  day  of  February,  a  copy  of  which  is  herewith  submittedi 

By  order  of  the  Board  of  Managers. 

JOHN  WURTS,  FresidenU 


March  10,  1852. 


Office  pi-j  vim  Delaware  and  Hudson  ) 
Canal  Company.  ) 

;    "  '  New  YorJcy  Feb.  10,  1852. 

Hon.  R.  B.  "yAN  Valkenburgh, 
Chairman^  &fc. 

Sir, — As  I  had  not  an  opportunity  to  present  to  yourself  or 
the  Committee  my  views  in  regard  to  the  inquiry  with  which 
it  is  charged,  I  take  the  hberty  to  submit  them  in  the  form  of 
a  letter  with  as  much  brevity  as  possible. 

I  have  already  said  that  I  regard  the  question  raised  by  the 
resolution  referred  to  the  Committee  as  one  purely  legal,  belong- 
ing as  it  seems  to  me,  to  the  judiciary  rather  than  the  Legislature. 
Without,  however,  now  taking  any  exception  to  legislative 
inquiry,  I  would  remark,  that  the  answer  to  the  inquiry,  wher- 
ever made,  must  depend  on  a  proper  construction  of  the  act 
by  which  the  Company  was  incorporated. 

Before  proceeding  to  an  examination  of  the  act,  I  beg 
leave  respectfully  to  suggest  one  or  two  considerations  in  re- 
lation to  the  rule  that  should  guide  us  in  the  interpretation  of 
this  act. 

There  are  some  principles  of  construction  apphcable  alike 
to  legislative  grants  and  private  deeds,  which  have  become  set- 
tled maxims  in  the  law  with  which  you  are  doubtless  famihar, 
but  I  desire  to  bring  them  to  the  notice  of  the  Committee,  as 
bearing  on  the  matter  before  it. 

The  construction  of  a  statute,  like  the  operation  of  a  devise, 
depends  upon  the  apparent  intention  of  the  maker  to  be  col- 
lected either  from  its  particular  provision,  or  the  general  con- 
text. Dwraris  on  Statutes,  p.  39.  Every  statute  ought  to 
be  construed,  not  according  to  the  letter,  but  according  to  the 
meaning,  for  qui  haeret  in  litera  haeret  in  cortice.  11  R. 
p.  73. 

A  thing  which  is  within  the  intention  of  the  makers  of  a 
statute  is  as  much  within  the  statute,  as  if  it  were  within  the 
letter.    Zouch  vs.  Stowell  Plowden,  366. ' 

Again,  in  Rep.  p.  52,  the  principle  is  recognized  that 
to  whomsoever  any  one  grants  a  thing,  he  is  supposed  to 
grant  that  also  without  which  the  thing  cannot  exist. 


That  this  maxim  is  applicable  to  corporations,  is  shown  by 
the  case  of  Rex  vs.  Westwood,  7  Bingham  70,  where  it  is 
said  that  when  the  Crown  creates  a  corporation,  it  grants  to 
it,  by  implication,  all  powers  that  are  necessary  for  carrying 
into  effect  the  object  for  which  it  was  created. 

Now,  to  apply  these  principles  to  the  case  or  question  un-^ 
der  consideration  :  the  Delaware  and  Hudson  Canal  Com- 
pany was  incorporated  on  the  23d  April,  1823,  and  the  Le- 
gislature by  which  the  act  was  passed,  has  not  left  us  in  doubt 
as  to  what  was  the  object  it  intended  to  accompHsh  by  the 
enactment.  It  thought  proper  to  declare  that  object  and  in- 
tent, in  a  preamble  in  which  both  are  fully  and  distinctly 
avowed  as  follows  : — 

"  Whereas,  it  is  desirable  that  a  channel  should  be  opened 
through  which  the  City  of  New  York  and  other  parts  of  the 
State  may  receive  a  siipidy  of  stone  coal,  which  is  found  in 
the  interior  of  the  State  of  Pennsylvania  :  And  whereas,  there 
is  a  large  body  of  this  valuable  article  belonging  to  Maurice 
Wurts,  of  the  said  State  of  Pennsylvania,  situated  near  the 
head  waters  of  the  river  Lackawaxen,  which  empties  into  the 
river  Delaware,  opposite  the  county  of  Sullivan  ;  and  the 
Legislature  of  that  State  has  recently  passed  an  act  authorizing 
the  abovenamed  individual  to  improve  the  navigation  of  the 
said  river  :  And  whereas,  it  is  represented  that  a  water  com- 
munication can  be  formed  between  the  rivers  Delaware  and 
Hudson,  through  the  counties  of  Orange,  Sullivan,  and  Ulster,  or 
some  one  or  more  of  them,  so  ih^i  a  supply  of  this  coal  may  be 
had  from  the  source  aforesaid  ;  and  a  number  of  the  citizens 
of  this  State  have  petitioned  the  Legislature  to  incorporate  a 
Company  for  the  purpose  of  making  such  a  communication 
between  the  said  rivers  ;  therefore,  be  it  enacted,"  &c. 

It  is  the  province  of  a  preamble  to  set  forth  the  views  and 
motives,  the  object  and  intent  of  the  Legislature,  in  the  enact- 
ment to  which  it  is  affixed,  and  this  is  most  clearly  and  effec- 
tually done  by  this  preamble. 

The  leading,  indeed  I  may  say,  the  only  motive  for  the 
act,  was  to  obtain  a  supply  of  coal  for  the  city  and  other  parts 
of  the  State  of  New  York.  This,  and  nothing  less  than  this,  was 
the  object  and  intent  of  the  Legislature  in  the  enactment;  and 
because  a  large  body  of  this  valuable  article  existed  near  the 
head  waters  of  the  Lackawaxen  river,  and  it  was  represented 
that  a  water  communication  could  be  formed  between  it  and 
the  Hudson,  "  so  that  a  supply"  of  this  coal  might  be  had 

2 


to 

from  that  source,  and  the  citizens  of  the  State  had  petitioned 
the  Legislature  to  incorporate  a  Company  for  the  purpose  of 
making  such  a  communication,  that  is,  one  that  would  furnish 
"  a  supply"  of  coal  for  the  city  and  other  parts  of  the  State  of 
New  York  ;  therefore,  and  to  attain  this  desirable  end,  did 
the  Legislature  of  that  day  create  the  Delaware  and  Hudson 
Canal  Company.  There  can  be  no  doubt  that  such  was  the 
intent  of  the  Legislature.  It  is  so  clearly  and  broadly  ex- 
pressed that  it  cannot  be  made  plainer  by  argument.  Shall  the 
statute  have  an  interpretation  which  will  carry  out  this  intent, 
or  shall  it  be  defeated  by  any  vague  doubts  or  suggestions  en- 
tirely at  variance  with  the  expressly  avowed  intent  of  the  Le- 
gislature ?  Shall  we  depart  from  the  established  rules  of  con- 
struction I  have  quoted,  which  declare  that  a  statute  ought  to 
be  construed,  not  according  to  the  letter,  but  according  to  the 
meaning  ;  and  that  a  thing  which  is  within  the  intention  of 
the  makers  of  a  statute,  is  as  much  within  the  statute  as  if  it 
were  within  the  letter  ?  I  presume  not.  On  the  contrary, 
I  presume  that  these  rules  of  interpretation  will  prevail  and 
sustain  the  legislative  intent  against  the  mere  wording  or  let- 
ter of  the  act,  even  if  anything  was  there  found  at  variance  with 
such  intent.  But  do  we  find  any  such  variance  ?  Not  at  all. 
On  the  contrary,  we  find  abundance  in  the  enactment  to  sus- 
tain and  carry  out  the  intent  of  the  Legislature. 

What  powers,  then,  did  the  Legislature  give  to  this  Compa- 
ny that  was  to  be  its  instrument  for  opening  a  channel  through 
which  the  city  and  other  parts  of  the  State  of  New-York 
might  for  the  future  receive  a  "supply"  and  nothing  less  than 
a  supply  of  coal,  that  important  necessary  of  life  ?  Did  the 
Legislature  fail  to  give  the  requisite  powers  to  accomphsh  the 
avowed  purpose  for  which  it  created  the  Company?  Let  us 
see. 

In  the  first  place  the  Company  was  made  perpetual,  a 
thing  not  very  common  in  our  legislation,  and  going  far  to 
show  that  the  Legislature  intended  to  provide  no  temporary 
or  half  way  measure  for  the  attainment  of  this  important  ob- 
ject. In  the  next  place,  as  you  will  see  by  the  second  sec- 
tion of  the  act,  the  Company  was  authorized  to  enlarge  its 
capital  stock  "  from  time  to  time  by  new  subscriptions,  in 
such  manner  and  form  as  it  might  think  proper,  under  the 
same  rules,  regulations  and  penakies  however  as  are  or  may 
be  imposed  on  the  original  subscribers,  if  such  enlargement 
shall  be  found  necessary  to  fulfil  the  intention  of  this  act." 


11 


We  have  seen  by  the  preamble  what  the  intention  of  the 
Legislature  was  in  passing  the  act,  and  knowing  that,  it  is 
obvious  how  entirely  in  keeping  and  harmony  with  it  is  this 
very  unusual  power  given  to  the  Company  to  enlarge,  from 
iime  to  time,  its  capital  stock  by  new  subscriptions,  if  such 
enlargement  was  found  necessary  to  fulfil  the  intention  of  the 
<ict. 

Here  is  a  corporation  created  that  is  to  exist  durmg  all 
future  time,  charged  with  the  duty  and  clothed  with  the  power 
to  open  a  channel  by  which,  for  a  period  of  course  coexten- 
sive with  its  own  existence,  a  rapidly  growing  city  and  adjacent 
country  might  receive  "  a  supphf  of  fuel,  than  which,  scarce- 
ly any  thing  could  be  more  essential  to  the  continuance  and 
increase  of'their  prosperity.    Now  it  was  perfectly  obvious 
to  the  Legislature  of  that  day,  that  such  a  channel  as  would 
be  adequate  to  a  supply  of  the  wants  of  the  community  then, 
would  before  long  cease  to  be  so,  in  consequence  of  the  rapid 
increase  of  population  and  of  the  growth  of  the  country.  It 
was  known  too,  that  to  open  a  channel  commensurate  with  the 
then  wants  of  the  public,  would,  at  that  early  day,  be  a  work 
of  great  magnitude  for  individual  or  associated  enterprize. 
It  would  have  been  useless,  perhaps  fatal  to  the  project,  to 
have  imposed  on  them  the  obligation  to  do  more  then  than 
the  exigency  of  the  day  required.     It  would  have  been 
equally  useless,  at  variance  with  the  object  in  view,  and  with- 
out doubt  fatal  to  the  enterprize,  to  have  withheld  from  its 
authors,  the  power  to  expand  and  progress  in  their  work  with 
the  growth  and  expansion  of  the  country  that  was  to  receive 
through  it     a  sujiply  of  fuel  y    In  this  state  of  things  the 
Legislature  pursued  a  course  that  obviated  the  difficulty  pre- 
sented by  either  alternative.    It  incorporated  the  Company 
with  the  declaration  prefixed,  that  it  intended  thereby  to  pro- 
vide for  "  a  supply, of  coal."    It  gave  the  Company  power 
to  raise  capital  by  subscriptions  of  stock  for  that  purpose,  and,, 
deemed  sufficient  to  opexi  a  channel  adequate  to  a  supply  of 
the  wants  of  the  comm-unity  then,  with  express  power  to  en- 
large its  capital  stock  from  time  to  time  by  new  subscriptions, 
if  such  enlargement  should  be  found  necessary  to  fulfil  the 
intention  of  the  act ;  evidently  intending  and  providing  that 
the  works  of  the  Company  and  their  capacity  to  supply  coal, 
should  expand  with  the  growth  of  the  country,  at  least  to  the 
jextent  of  the  avowed  object  of  the  act  of  incorporation, 
whijch  \^ras  to  prqvidQ  for  "  a  supply"  of  that  article. 


This  conclusion  is  sustained  and  confirmed  by  the  fact  that 
the  Legislature  nowhere  prescribes  the  dimensions  of  the 

channel"  or  canal  through  which  this  "  supply"  of  coal  is 
to  be  had  ;  but  on  the  contrary,  in  the  8th  section  the  Compa-. 
ay  is  "  empowered  to  make,  construct  and  for  ever  maintain 
31  canal  or  slackwater  navigation  of  suitable  width,  depth  and 
dimensions,  to  be  determined  by  said  Corporation,"  &c.;  and 
m  the  9th  section,  provision  is  made  for  "  assuring  to  said 
Corporation,  all  the  lands,  real  estate,  and  waters  requisite  for 
most  economically  constructing  and  maintaining  said  canal." 
Here  is  power  given  to  acquire  all  lands,  real  estate,  and  wa- 
ters requisite  to  construct  and  for  ever  maintain  a  canal  or 
slackwater  navigation  of  suitable  width,  depth  and  dimensions 
to  be  determined  by  the  Corporation.  In  the  exercise  of 
this  discretion  as  to  width,  depth  and  dimensions,  they  must 
surely  keep  in  view  the  avowed  object  of  the  Legislature  in 
creating  the  Company,  which  is  to  provide  "a  channel  for  a 
supply  of  coal."  They  are  not  bound  by  the  terms  of  the 
act  to  provide  a  channel  more  than  adequate  at  any  time  to 
the  attainment  of  that  object.  They  have  power  given,  and  it 
is  their  duty  as  well  as  their  right,  at  all  times,  as  far  as  physi- 
cal means,  (namely,  land  and  w^ater,)  will  permit,  to  live  up  to 
the  intent  of  the  Legislature  in  their  creation,  namely,  to  pro- 
vide and  for  ever  maintain  an  avenue  of  suitable  width,  depth, 
and  dimensions,  to  furnish  a  supply  of  coal. 

In  accordance  with  this  exposition  of  the  statute,  and  of  the 
views  and  intentions  of  its  makers,  has  been  the  history  of  the 
Company's  action,  and  of  the  coal  trade.  The  business  of 
the  Company  as  a  Canal  and  Coal  Company  commenced  in 
the  year  1829,  with  locks  9  feet  wide,  and  76  feet  long,  and  a 
canal  of  four  feet  minimum  depth  of  water,  32  feet  wide  on  the 
top  water  hne,  and  20  feet  at  the  bottom,  navigated  by  boats  av- 
'^raging  about  25  ton  cargoes.  But  it  has  been  improved  and 
enlarged  from  time  to  time,  until  it  has  now  a  minimum  depth 
of  5^  to  6  feet,  with  locks  of  15  feet  wide  by  100  long, 
and  a  top  w^ater  line  of  48  feet,  and  30  feet  at  the  bottom,  and 
is  navigable  by  boats  averaging,  during  1851,  cargoes  of  about 
1.05  tons,  which  will  be  increased  during  1852.  I  beg  leave 
to  correct  my  verbal  statement  from  memory,  before  the  Com- 
mittee, by  my  present  figures,  where  there  is  a  variance  be- 
tween them. 

And  were  not  these  alterations  and  improvements  called 
for  by  the  progress  and  developement  of  the  coal  trade  which 


13 


have  taken  place  since  the  year  1829  ?  Look,  if  you  please, 
at  the  annexed  table,  exhibiting  the  Anthracite  coal  trade  of 
the  country  from  1820  to  the  present  time,  commencing  in 
1820  with  365  tons,  reaching  in  1829  from  all  sources, 
112,683  tons,  and  increasing  from  year  to  year  thereafter  until 
in  1851  it  amounted  to  over  4,000,000  of  tons. 

ANTHRACITE  COAL  TRADE  OF  THE  UNITED  STATER 

The  following  Table  exliibits  the  qiiantiiv  of  Anthracite  Coal  sent  to 
market  from   tlie  ditferent   re^^ions  iu  Pennsylvania,  from  ihe 
mencement  of  the  Trade,  in  1820,  to  1851,  inclusive 
Annual  Increase : 


com- 
toeether  with  the 


Schuylkill 


1820 
1821 
1822 
1823 
1824 
1825 
1826 
1827 
1828 
1829 
1830 

mi 

1832 
1833 
1834 
1835 
1836 
183 
18:i8 
1839 
1840 
1841 
1842 
1813 
1844 


Lehigh. 


6.500 
16.76 
31.360 
47,284 
79.973 
89  984 
81 ,8-54 
209,271 
252,971 
226,692^ 
339.508 
432.015 
523.152 
433,875; 
442,^1081 
452  291; 
584,692 
540  892 
t)77.295 
839.934 
1845  L0t53.796 
1846!  1,237.002 
1 847  i  1,583,374; 
184811  652,835 1 

1849  1,605,126, 

1850  1  712.007: 

1851  2.184  240 


365 
1,073 
2.240 
5,H23 
9,541 
28.393 
31  280 
32,074 
30,232 
25.110 
41.750 
40,966 
70.000 
123,000 
106,244 
131.250 
148,2ir 
223,902 
213,615 
221 .025 
225.318 
143,037 
272,546 
267.793 
377,002 
429,453 
523,002 
643,973 
680,746 
801.246 
722  6  ^2 
V8,:),296 


7, COD 
43.009 
54.000 
84.600 
111.777 
43,700 
90,000 
103.861 
115,38' 
78  20' 
122,300 
148.' 
192.270 
205.253 
227,605 
251.005 
276.435 
320,000i 
3  8  203 
437,500 
454  240 
543  353 
788,495 


Other 
Regions. 


305 
1  073 
2.240 
5.823 
9,541 
34.893 
48.047 
63,434 
77.516 
112.083 
174.734 
r6.S20 
363,871 
487.748 
376  636 
560,758 
6^2,45.8 
681,476 
739,293 
819,327 
865  414 
958.899 
.,108,001 
1,263  539 

1  331.669 

2  023.052 
2.943  992 
2.962,303 
3.069,238 
3.242  541 
3,254.321 
4,377.130 


Annual 
Iriciease. 


Increase  m 
each  5 
years 


Av.  annual 
delivery. 


19,042 


1,579,1 


25,352 

13. 154 

15.837 

14.082 

34.567 1  335,978 

62.6511   

2,080;   

187.051 
123.877 
decrease. 
184  1-22 
121,670 
199,048 
decrense. 

80,034 

46.087 

9g'i485 
149.102 
155,538 
368,130!  5,627.052 
391.383 
320.940 
638.317 
106.929 
163,403  13,681,132 

11.760j 
1  1 92.809 1 


3,683,283 


Av.  annual 
incrr-ase 

eai.li  year 
ovei  the 

iirrcedins. 


3,809 


67,194 


315,961 


1,165,504 


13.438 


82,139 


85,769 


2,736,226 


314,144 


The  ratio  of  increase  for  the  five  years,  ending  in  1849, 
over  the  previous  5  years,  was  nearly  135  per  cent  ;  at  this 
rate  the  increased  quantity  of  coal  required  to  meet  the  de- 
mand for  the  next  5  years  would  be  over  18,000,000  tons,  or 
an  increase  over  the  present  production  of  3,693,905  tons  per 
annum. 

Now,  with  these  facts  before  us,  can  it  be  doubted  that  when 
the  legislative  authority  of  the  State  of  New-York  granted 
to  the  Delaware  and  Hudson  Canal  Company  the  right  to 
connect  a  coal  field  with  a  seaboard  market  by  means  of  a 
"  canal,"  and  to  maintain  that  as  a  channel  of  communicatioa 


for  ever,  with  the  avowed  intent  in  the  act  of  thereby  obtaining 
a  "  supply  of  coal,"  with  power  also  to  enlarge  its  capital 
stock  from  time  tp  time  if  such  an  enlargement  should  be 
found  necessary  to  fulfil  such  intent,  can  it  be  doubted,  I  say, 
that  the  Legislature  granted  also  the  right  of  improving,  re- 
pairing and  enlarging  the  canal,  from  time  to  time,  ag  should 
be  necessary  to  effectuate  the  object  in  view  ?  As  mere  mat- 
ter of  construction  such  an  implication  seems  not  only  just 
but  unavoidable,  especially  when  we  bear  in  mind  that  the 
canal  was  to  be  of  suitable  width,  depth  and  dimensions,  to  be 
determined  by  the  Corporation.  It  was  known,  it  must  have 
been  known,  that  the  canal  would  open  up  an  almost  wilder- 
ness country  and  fill  it  with  population ;  that  tt)wns  and  villla- 
ges  would  spring  up  and  manufactures  be  established  in  its 
vicinity ;  that  increased  capital,  skill  and  facilides  would  be 
employed  in  developing  coal ;  and  that  the  markets  of  New- 
York  would  continually  expand  with  the  increase  of  com- 
merce, population  and  trade  :  and  was  it,  could  it  be  the 
intention  of  the  Legislature  that  the  canal  of  1829,  adequate 
as  it  was  to  the  then  condition  of  the  country,  should  remain 
and  be  the  canal  for  all  this  increase  of  population  and  trade? 
That  whilst  every  thing  around  it  was  growing,  it  should  be 
condemned  to  dwarfish  insignificance  and  uselessness,  that 
coal  should  abound  at  one  end  of  it,  and  consumption  call  for  it 
at  the  other  end,  but  that  the  canal,  though  designed  to  furnish 
"  a  supply  of  this  coal,"  should  not  be  increased  in  capacity 
beyond  what  it  was  in  the  very  infancy  of  the  coal  trade, 
although  it  was  to  be  a  channel  for  its  transit  ?  Such  a  mode 
of  interpreting  the  legislative  will  would  dishonor  the  in- 
teUigence  and  public  spirit  that  has  always  characterized  the 
State,  and  it  does  much  better  comport  with  her  character  as 
well  as  the  true  spirit  and  intent  of  the  act,  to  hold,  not  only 
that  the  Company  had  the  right,  but  that  it  was  its  duty  so  to 
enlarge  and  qualify  its  c^nal  as  to  accommodate  all  the 
business,  but  especially  all  the  coal  business  that  should  come 
upon  it. 

Bear  in  mind  also,  that  since  the  year  1829,  j^n  entire  revp- 
lution  has  taken  place,  not  merely  in  the  quantity  of  Anthra- 
cite coal  consumed,  but  in  the  cost  of  its  producUon.  While 
it  has  become  an  element  of  civihzation,  and  enters  largely 
into  the  domestic  economy,  the  manufacturing  and  the  navi- 
gation of  the  country,  it  is  furnished  on  tide  water  at  Httle  if 
^ny  mpre  than  h^lf  of  the  price  it  commandeil  in  1,829.  Now 


15 


had  this  canal  ifemained  of  its  original  dimensions  and  capaci- 
ty, it  would  long  ago  have  been  out  of  use  for  coal  transpor- 
tation because  of  the  cost  in  small  boats,  and  if  not  used  for 
that  purpose,  it  must  have  gone  to  decay.  The  other  business 
on  it  would  not  have  kept  it  in  repair.  And  yet  the  act  im- 
poses heavy  penalties  on  the  Company  if  it  shall  neglect  to 
keep  it  in  repair,  as  you  tvill  percfeive  by  the  17th  section. 
May  it  hot  then  avail  itself  of  the  only  branch  of  trade  or 
business  that  was  competent  to  that  object,  when  in  fact  it  was 
the  very  trade  and  business  for  the  accommodation  of  which 
it  was  more  especially  designed  by  the  L  egislature  ?  It  would 
indeed  be  most  extraordinary  if  it  could  not  do  so. 

Such,  Sir,  are  my  views  as  to  the  interpretation  of  this  act, 
the  powers  conferred  and  the  duties  enjoined  on  the  Company 
by  it.  It  would,  as  it  seems  to  me,  have  failed  in  its  duty, 
disappointed  the  just  expectations  of  the  Legislature,  and  in- 
curred, most  likely,  the  consequences  of  a  non-user  of  its  fran- 
chise, had  it  failed  to  come  up  to  the  object  of  its  creation,  by 
opening,  and  maintaining  a  channel  "  thtough  which  the  city 
of  New  York,  and  other  parts  of  the  State,  might  receive  a 
supply  of  coal." 

I  deem  it  inexpedient  and  unnecessary  to  comment  on  the 
affidavits  submitted  to  the  Committee,  because  I  do  not  re- 
gard them  as  at  all  pertinent  to  the  inquiry  before  the  Committee. 
Were  it  worth  while  to  do  so,  we  would  have  no  difficulty  in 
refuting  all  that  is  there  imputed  to  the  Company  of  an  un- 
worthy character,  by  the  most  indubitable  testimony.  I  would 
remark,  however,  that  while  the  Company  claims  and  believes 
it  has  a  right  under  its  charter  to  improve  and  enlarge  its  canal 
as  it  has  done,  it  never  has  disclaimed  or  attempted  to  evade 
responsibility  for  its  acts.  On  the  contrary,  it  clearly  and  dis- 
tinctly avows,  and  has  done  so  in  all  past  times,  its  responsi- 
bility under  its  charter  to  any  one  who  may  feel  himself  ag- 
grieved by  the  enlargement,  in  the  same  manner  and  form 
that  it  was  responsible  for  the  original  making  of  the  canaL 
Nor  has  it  on  any  occasion  occupied  the  land  of  any  one 
against  his  consent,  without  first  giving  security  as  provided 
by  the  act,  to  pay  all  damages  that  might  be  awarded  to  the 
complainant. 

One  word  as  to  the  new  piece  of  canal  constructed  at  High 
Falls.  I  stated  verbally  to  the  Committee  the  reasons  for 
making  this  piece  of  new  or  enlarged  canal,  namely:  that 
there  was  not  room  on  the  site  of  the  old  locks  to  construct 


16 


the  enlarged  Ones ;  and  that  if  it  were  not  so,  we  would  have 

deemed  it  unsafe  to  place  the  new  locks  there,  because  we 
had  found  difficulty  in  maintaining  the  old  ones  in  their  place 
in  consequence  of  strata  of  clay  and  quicksand  affecting  their 
foundation  But  aside  from  this  consideration,  there  can  have 
been  no  violation  of  the  charter,  by  the  construction  of  this  new 
piece  of  canal,  because,  by  the  8th  section,  the  Company  is 
authorized  "to  construct  artificial  harbors  for  boats,  side  cuts 
or  lateral  canals  connected  with  said  basins,"  &c.  This  is  in 
fact  a  "lateral  canal"  connected  at  one  end  with  a  "basin  or 
artificial  harbor  for  boats,"  common  to  and  accessible  from 
both  canals,  and  made  for  the  accommodation  of  the  trade  of 
the  place.  But  in  addition  to  all  this,  the  old  locks  and  sec- 
tion of  canal  are  still  in  existence  and  kept  in  repair,  and  may 
be  used  as  in  all  former  times,  by  any  one  who  prefers  to  nav- 
igate the  canal  with  a  boat  of  50  tons  rather  than  a  larger  one. 

I  have  thus.  Sir,  presented  my  views  of  the  matter  before 
the  Committee,  and  regret  that  I  have  been  obliged  to  inflict 
on  you  so  long  a  letter.  The  importance  of  the  subject  to  the 
Company  and  the  public  is  my  apology.  I  will  only  add, 
that  so  far  from  expecting  to  be  arraigned  before  the  Legisla- 
ture and  the  pubHc  as  wrong-doers  for  doing  what  we  have 
done,  we  have  really  supposed  that  we  had  thereby  "  done 
the  State  some  service."  We  have  thereby  cheapened  very 
much  and  provided  for  a  supply  of  one  of  the  most  im- 
portant necessaries  of  life,  the  want  or  the  abundance  of 
which  affects  sensibly  the  comfort  and  the  interest  of  the 
whole  community.  We  have  provided  the  means  for  a 
large  inland  trade,  which  will  soon  spring  up  under  the  influ- 
ence of  the  change  made  in  the  canal ;  for  the  boats  that  now 
navigate  it,  can  with  safety  proceed  from  the  head  of  our  canal 
with  their  cargoes  of  coal  to  the  City  of  New  York,  or  any 
place  on  the  North  river,  or  on  the  enlarged  State  Canal ;  and 
after  discharging  the  coal,  take  in  return  cargoes  of  sak, 
grain,  flour,  oats  or  other  articles,  the  product  of  the  country, 
and  which  are  required  and  consumed  in  large  quantities  along 
the  line  of  the  Delaware  and  Hudson  Canal. 

Will  you.  Sir,  be  good  enough  to  submit  the  foregoing  to 
the  Committee,  and  beUeve  me  to  be. 

Very  respectfully,  your  ob't  serv't, 

JOHN  WURTS,  President, 


J 


